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THE SCOTTISH HUMAN RIGHTS COMMISSION

PART A - THE REMIT OF THE COMMISSION

1. The Devolved Remit

The Scottish Executive has already announced that the Scottish Human Rights Commission will be a devolved body. This means that the Commission will not deal with those issues which are reserved to the UK Parliament and UK Ministers. Decisions on the establishment of the Scottish Human Rights Commission can therefore be made by Scottish Ministers and the Scottish Parliament.

The exact nature of the Commission's devolved responsibilities will have to be clearly defined in legislation. We think that one potential way forward would be for the Commission to draw the definition of its devolved remit from the Scotland Act. This would distinguish between reserved and devolved issues and reflect the transfer of responsibility for observing and implementing international human rights obligations (relating to devolved matters) to Scottish Ministers.

The Scottish Commission would not have a formal relationship with Westminster or with UK Ministers. However, committees at the Westminster Parliament have power to call any body or person in the UK to give evidence. This extends to devolved bodies and will extend to the Scottish Human Rights Commission.

We also envisage that it should be possible for the Commission to establish an informal relationship (limited to devolved matters) with UK Departments, for example with the Lord Chancellor's Department (LCD) and the Foreign and Commonwealth Office (FCO). This might be relevant:

• Where the LCD seeks comments on draft reports to bodies like the UN on the UK's compliance with international obligations;
• Where the FCO seeks comments on the UK's position on human rights. This could include issues in various international fora e.g. the European Union, the Commonwealth and the UN;
• Where the LCD seeks comments on the UK's general position on international human rights instruments;
• Where a Whitehall Department is conducting a consultation exercise on a change to UK law on a reserved issue that would affect human rights in Scotland.

2. International Human Rights Instruments

The Scottish Executive has already announced that the Commission will have a remit covering the full range of international human rights instruments. However, we need to consider whether this is appropriate for all of the Commission's key functions.

In addition to the ECHR, the UK is party to a wide range of other international human rights instruments including various UN Conventions and the EU Charter of Fundamental Rights. Although these instruments have not been given further force in the UK (as the ECHR has), the UK is still bound by them.

Under the Scotland Act, Scottish Ministers are responsible for observing and implementing international human rights obligations (relating to devolved matters). In addition, it is open to the Committees at the Scottish Parliament to call the Executive to account on observance and implementation of these obligations.

To reflect the binding nature of international human rights agreements and to reflect the position under the Scotland Act, we believe that it is appropriate for the Commission's remit in relation to international human rights instruments to extend to all of its key functions. Within this remit it should be for the Commission to determine its priorities. In the short term, it is more likely that there would be a focus on the ECHR. However, it will be open to the Commission to do the following:

• To hold Scottish Ministers to account by monitoring or investigating compliance with international human rights instruments and publishing its reports and recommendations;
• To offer guidance to public authorities in Scotland on other human rights instruments, in addition to the European Convention on Human Rights and the Human Rights Act;
• To offer advice and information to MSPs;
• To promote and raise awareness of a range of international instruments in Scotland.

3. Children

The Scottish Parliament's Education, Culture and Sport Committee conducted an investigation into whether a Commissioner for Children and Young People should be established in Scotland. A Bill was subsequently introduced into the Scottish Parliament on 4 December 2002. We have considered the implications for a Scottish Human Rights Commission if a Children's Commissioner were to be established.

One option would simply be to remove children from the remit of the Human Rights Commission. We are not in favour of this, since we feel it is incompatible with a Commission having a broad remit. Excluding children could also lead to gaps in the protection of the rights of children who are included not just in the terms of the UN Convention on the Rights of the Child but also in other international instruments. Alternatively, we could consider whether it would be possible to insert wording into draft legislation which would help to establish the boundaries between the two bodies.

It will be equally important, however, to ensure that the two bodies can work together in practice. We would expect a memorandum of understanding to be drawn up covering the issues where both bodies might have an interest. We also feel that it would be sensible for both bodies to consider the advantages of co-location and the potential for sharing resources that this might bring.

Preferred Approach

• The Commission should have a formal relationship only with Scottish Ministers and the Scottish Parliament, reflecting its devolved remit. However, it should be able to develop an informal relationship with UK Departments where appropriate;
• The Commission's remit in relation to each of its key functions should extend to the full range of international human rights instruments but it would be for the Commission to establish its own priorities within this remit;
• Children should not be specifically excluded from the Commission's remit but the Commission would be expected to establish workable practical arrangements with a Commissioner for Children and Young People should one be established. This should include considering whether there is scope for co-location and sharing resources.

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